Second Man Accuses State Department of Discrimination Based on His HIV-Positive Status

A second HIV-positive man is accusing the State Department of discrimination because the agency did not hire him as a diplomat based on his HIV status, according to a statement released by his attorneys, Reuters reports. The department had approved Kyle Smith for employment pending medical approval, but he was ultimately not hired because he tested HIV-positive, the Lambda Legal Defense and Education Fund, the not-for-profit group representing Smith, said (Reuters, 10/29). The State Department in 2001 stopped routine HIV testing for foreign personnel and U.S. personnel hired locally to work at U.S. posts in other countries. Previously, U.S. ambassadors could choose to require HIV testing of foreign workers and locally hired U.S. citizens, a practice followed by about 20 overseas missions, many in Africa. However, the department did not suspend routine testing of applicants for the Foreign Service. The HIV testing is part of a requirement that newly hired employees in the Foreign Service have "worldwide availability," meaning that they cannot have medical problems that would prohibit them from being stationed anywhere in the world, including areas that may have limited health care infrastructures. According to State Department officials, Foreign Service officers who are diagnosed with HIV after being hired are not dismissed (Kaiser Daily HIV/AIDS Report, 9/4). Lambda has filed a complaint with the department's Office of Civil Rights, claiming that the State Department's action violated the federal Rehabilitation Act, which prohibits the federal government from discriminating against people with disabilities, Reuters reports (Reuters, 10/29). Jonathan Givner, a Lambda attorney, said, "The State Department is preventing qualified, healthy people from serving their country," adding, "This isn't just bad policy -- it's illegal."

First Case
Last month, Lambda filed a similar suit against the State Department and Secretary of State Colin Powell on behalf of another man who was denied a position in the Foreign Service based on his HIV-positive status, Agence France-Presse reports (Agence France-Presse, 10/29). Lorenzo Taylor of Arlington, Va., in November 2001 was conditionally accepted as a Foreign Service officer after he passed the required oral and written exams. However, the State Department declined to employ Taylor, saying that his HIV-positive status would prevent him from being stationed in certain posts. Lambda officials also noted that in June 2002, Powell called on private sector companies, including those in countries with high HIV prevalence, not to discriminate against HIV-positive employees (Kaiser Daily HIV/AIDS Report, 9/4). The State Department is scheduled to respond to the suit next week and has declined to comment on the case because it is a pending legal matter, Agence France-Presse reports. A State Department official who asked to remain anonymous said, "It's not so much a matter of [HIV-positive people's] ability to do the job. We recognize that people who are HIV-positive have the ability to do the job. But is it fair to the entire corps to have some people come in who can only take assignments in a limited number of places and other people therefore get shunted off to maybe less desirable places without the same quality of medical facilities?" Lamda said that Foreign Service applicants should be considered on a case-by-case basis to determine individual medical status and fitness for employment in foreign countries, Agence France-Presse reports (Agence France-Presse, 10/29).

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